Ybarra v. Burlington Northern, Inc.

• Citation: 689 F.2d 147
• Decision Date: 28 September 1982
• Docket Number: No. 81-1957,81-1957
• Parties: Lorenzo R. YBARRA, Appellee, v. BURLINGTON NORTHERN, INC., a Corporation, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 147

689 F.2d 147

Lorenzo R. YBARRA, Appellee, v. BURLINGTON NORTHERN, INC., a Corporation, Appellant.

No. 81-1957.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 11, 1982.

Decided Sept. 28, 1982.

Knudsen, Berkheimer, Beam, Richardson & Endacott, Richard A. Knudsen, Trev E. Peterson, Thomas C. Sattler, Lincoln, Neb., for appellant.

DeParcq, Anderson, Perl, Hunegs & Rudquist, P.A., Richard Hunegs, and Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, O. C. Adamson, II, Minneapolis, Minn., and Higgins & Okun, John J. Higgins, Omaha, Neb., for appellee.

Before HEANEY, ARNOLD and JOHN R. GIBSON, ^* Circuit Judges.

HEANEY, Circuit Judge.

Defendant Burlington Northern Railroad Company appeals from a judgment in favor of Lorenzo Ybarra on his action under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51-60. The defendant contends that the district court committed reversible error in its jury instructions. We hold that the charge to the jury was proper under the FELA, and affirm the district court's judgment.

I.

Lorenzo Ybarra began working as a laborer for Burlington Northern in Lincoln, Nebraska, in December, 1972. On October 17, 1977, Ybarra suffered an injury to his back while he and another employee were servicing a Burlington Northern switch-engine locomotive. Ybarra was injured while lifting a five-gallon bucket of oil, weighing forty to fifty pounds, to lubricate the switch engine. The lubricating process required Ybarra to lift the oil bucket with one hand from below the level of his feet by squatting down and reaching away from his body while holding onto a railing with his other hand. Ybarra then lifted the bucket up and twisted slightly to get onto a platform, from where he lifted the bucket up further and poured the contents into an oil receptacle. Each switch-engine locomotive required eight to ten buckets of oil for a complete servicing. On the day of the injury, Ybarra felt a sharp pain radiating down his back and into his right leg while he was lifting the third bucketful of oil.

After conservative treatment for the injury, a doctor for the defendant recommended surgery. In November, 1977, Ybarra underwent a laminectomy and an excision of the lumbar sacral disc. This surgery failed to alleviate the plaintiff's symptoms, and additional surgery was performed in April, 1978.

Ybarra returned to work at Burlington Northern in February, 1979, as a janitor. The railroad doctor certifying Ybarra's return explicitly limited his lifting to thirty pounds and prohibited any shoveling. Ybarra still suffers considerable back pain, wears a brace and periodically receives pain-relieving injections. His medical expert at trial and his current treating physician testified that Ybarra suffers from a permanent disability of thirty percent and fifteen to twenty percent, respectively.

Ybarra instituted this action under the FELA in January, 1980, alleging that his back injury on October 17, 1977, was caused by the defendant's negligence. The jury, in a general verdict, found in favor of Ybarra and awarded him $185,000 in damages. The district court granted Burlington Northern's motion for credits totaling $8,694.80 against the judgment, but denied its motion for j.n.o.v., or alternatively for a new trial. The defendant now appeals, contending that the court below committed reversible error in giving and failing to give certain jury instructions.

II.

The FELA makes a common carrier engaged in interstate commerce "liable in damages to any persons suffering injury while he is employed by such carrier in such commerce * * * resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier * * *." 45 U.S.C. § 51. Under the FELA, "the railroad will be liable if its or its agent's negligence played any part, even the slightest, in producing the employee's injury." Richardson v. Missouri Pacific Railroad Co., 677 F.2d 663, 665 (8th Cir. 1982) (emphasis added). Accord, Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957); Boeing Co. v. Shipman, 411 F.2d 365, 371-373 (5th Cir. 1969). In Chicago, Rock Island and Pacific Railroad Co. v. Melcher, 333 F.2d 996, 999 (8th Cir. 1964), this Court stated: "Under the (FELA), the right of the jury to pass upon the question of fault and causality must be most liberally viewed. * * * (T)he jury's power to engage in inferences must be recognized as being significantly broader than in common law negligence actions."

Even in a FELA case, however, it remains improper for a court to instruct the jury on matters for which there is no support in the record. See, e.g., Richardson v. Missouri Pacific Railroad Co., supra, 677 F.2d at 666. Wright v. Farmers Co-op of Arkansas and Oklahoma, 620 F.2d 694, 697 (8th Cir. 1980). Burlington Northern argues that the district court committed reversible error by giving four instructions, see infra, that are unsupported by any evidence in the record. Each of these four instructions concerned alleged negligent conduct by the defendant which, if found by the jury to have occurred, would render Burlington Northern liable to Ybarra for damages. The railroad argues that the general verdict in favor of Ybarra cannot be sustained because it is impossible to determine whether the jury based its verdict on a proper theory of liability, or instead on one of the four allegedly erroneous theories submitted by the district court. See, e.g., Otten v. Stonewall Insurance Co., 511 F.2d 143, 148 (8th Cir. 1975); Local 978, United Brotherhood of Carpenters & Joiners of America v. Markwell, 305 F.2d 38, 48 (8th Cir. 1962).

An appellate court may set aside a jury verdict only when there is no evidence of substance upon which reasonable persons could differ. E.g., McCamley v. Schockey, 636 F.2d 256, 258 (8th Cir. 1971). In reviewing the district court's denial of defendant's motion for j.n.o.v. or new trial, we are not free to weigh the evidence, to pass on the credibility of witnesses or to substitute our judgment for that of the jury. E.g., Farner v. Paccar, Inc., 562 F.2d 518, 522 (8th Cir. 1977). Instead, we must view the evidence most favorably to the plaintiffs and give them the benefit of all reasonable inferences to be drawn from the record. Id. With these principles in mind, we turn to the jury instructions that Burlington Northern challenges.

III.

Burlington Northern first contends that the district court erred in instructing the jury that the railroad must publish and enforce adequate safety rules in the exercise of its duty to use reasonable care in protecting its employees. ¹ It argues that there was no evidence that it failed to do either. We disagree.

The plaintiff concedes that Burlington Northern has promulgated safety rules concerning lifting by employees. These lifting rules instruct employees, inter alia, to "keep the object as close to the body and near your own center of gravity as possible * * * (and) avoid twisting the body as the weight is released * * *." The plaintiff, however, contends that Burlington Northern has failed to enforce these lifting rules.

When the evidence shows that the railroad customarily does not enforce a safety rule, the jury is entitled to consider whether that custom constituted negligence and whether it caused, in whole or part, the plaintiff's injury. Flanigan v. Burlington Northern, Inc., 632 F.2d 880, 883-884 (8th Cir. 1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1370, 67 L.Ed.2d 349 (1981). The record contains substantial evidence that it was the defendant's custom not to enforce these lifting rules during the switch-engine servicing involved here. Ybarra and his coworker, Jerry Vannest, testified that the defendant's servicing procedure required the worker to lift a forty to fifty-pound bucket of oil with one hand from below the level of his feet while squatting and then twisting on the side of the locomotive, all the time holding onto the engine with the other hand. Dr. Tribulato, plaintiff's medical expert, testified that the lifting procedure for oil servicing was "a very poor way of lifting" that caused "considerable stress on the back, probably about as much abnormal stress as you can get with that amount of weight." The harmful effects of this lifting method were magnified by the fact that each switch engine required eight to ten buckets of oil for a complete lubrication.

The plaintiff also testified that he had used this lifting method since he began working for Burlington Northern in 1973. Vannest stated that he had used the two-man bucket lifting procedure since 1968. Plaintiff's superior, Arthur Jaeb, the superintendent of locomotives, testified that he had seen Ybarra lifting the oil bucket in the described manner, and he had not ordered or suggested that the plaintiff use an alternative procedure ² because he believed that it was acceptable and consistent with the Burlington Northern's safety rules. Jaeb further stated that the lifting rules quoted above did not apply to the five-gallon can used in the servicing procedure. There is no record evidence that Burlington Northern's safety manual, in fact, excepts five-gallon cans from its lifting rules.

From the foregoing evidence, the jury could reasonably find that the defendant, through its agents, knowingly failed to enforce its safety rule regarding lifting. Accordingly, the district court did not err in instructing the jury that Burlington Northern had a duty to promulgate and enforce adequate safety rules.

Burlington Northern next contends that the district court erred in instructing the jury that the defendant would be liable for negligence if it assigned Ybarra to, or its doctor qualified him for, work that they knew or should have known was beyond his physical capacity. ³ Specifically, Burlington Northern argues that no jury could reasonably find that it assigned Ybarra to, or its doctor qualified him for,...